Citation Nr: 21029935 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 06-17 808 DATE: May 17, 2021 ORDER Restoration of the 30 percent disability rating for the Veteran's service-connected tinea corporis with ecthyma of fingers and intradermal to face, effective June 1, 1970, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran was in receipt of a 30 percent rating for service-connected tinea corporis with ecthyma of fingers and intradermal to face from November 1, 1967, to June 1, 1970, a period of less than five years. 2. The evidence of record at the time of a March 1970 rating decision did not demonstrate a sustained improvement in the Veteran's service-connected tinea corporis with ecthyma of fingers and intradermal to face under ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the rating for service-connected tinea corporis with ecthyma of fingers and intradermal to face from 30 percent to noncompensable was improper, and the criteria for restoration of the 30 percent rating are met, effective June 1, 1970. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344 4.1, 4.2, 4.10, 4.13, 4.115a. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) from a March 1970 rating decision. In June 2011, the Board remanded this matter for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). In December 2019, the Board determined that the reduction in disability evaluation from 30 percent to noncompensable in 1970, for service-connected tinea corporis with ecthyma of fingers and intradermal to face was proper. The Veteran then appealed the case to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court vacated the Board's December 2019 decision, in part, and remanded this matter to the Board pursuant to a December 2020 Joint Motion for Partial Remand submitted by the Veteran and VA. Rating Reductions By way of background, an April 1968 rating decision awarded service connection for tinea corporis with ecthyma of fingers and intradermal to face, and assigned an initial 30 percent disability rating under Diagnostic Code 7899-7806, effective November 1, 1967. Following a November 1969 VA examination, the agency of original jurisdiction (AOJ) issued a rating decision in March 1970 that reduced the rating assigned to the Veteran's service-connected tinea corporis with ecthyma of fingers and intradermal to face from 30 percent to noncompensable, effective June 1, 1970. In May 1970, the Veteran submitted a notice of disagreement with the March 1970 rating decision. Despite the Veteran's notice of disagreement, the AOJ issued another rating decision in August 1970 that reiterated that the rating assigned to the Veteran's service-connected tinea corporis with ecthyma of fingers and intradermal to face was being reduced from 30 percent to noncompensable, effective June 1, 1970. At the time the March 1970 rating decision was issued, 38 C.F.R. § 3.105(e) permitted rating action to be taken where the reduction in evaluation of service-connected disability was considered warranted. Any reduction was to be made effective the last day of the month in which a 60-day period from the date of notice expires. The Veteran was to be notified of the action taken and furnished detailed reasons therefore, and was to be given 60 days for presentation of additional evidenced. In the instant case, the reduction from 30 percent to noncompensable for the Veteran's tinea corporis with ecthyma of fingers and intradermal to face reduced his overall compensation from 30 percent to noncompensable. Thus, the version of 38 C.F.R. § 3.105(e) in effect at the time of the March 1970 rating decision is applicable. The Board finds that the AOJ complied with the requirements of 38 C.F.R. § 3.105(e) in that the selected effective date was more than 60 days after the notice, and the March 1970 rating decision provided detailed reasons for the decision. Therefore, the Board finds that the requirements of 38 C.F.R. § 3.105(e) were met. Where a disability rating has been continued for at least 5 years at the same level, under 38 C.F.R. § 3.344, if there have occurred changes in essential medical findings or diagnosis, that case is to be reviewed and adjudicated so as to produce the greatest degree of stability of disability evaluation. In determining the propriety of a previous evaluation, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability. 38 C.F.R. § 3.344(a). If a doubt remains after according due consideration to all the evidence developed by the several items discussed in section 3.344(a), the rating agency will continue the rating in effect under specified procedures. 38 C.F.R. § 3.344(b). In this case, however, the 30 percent rating in question was not in effect for five years. Thus, the preceding paragraphs (a) and (b) do not apply. Accordingly, reexaminations disclosing improvement, physical or mental, in these cases will warrant reduction in rating. 38 C.F.R. § 3.344(c). Regulations "impose a clear requirement that VA rating reductions ... be based upon a review of the entire history of the Veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is not proper unless the Veteran's disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the Veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the agency of original jurisdiction (AOJ) at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In this case, a November 1967 VA treatment record noted the presence of nummular lesions on the feet, legs, thighs, arms, and chest. There was also some scaly plaques and some pustules, and the Veteran was continuing treatment. A November 1967 VA examination revealed mildly scaling erythematous plaques and medallions on the cheeks and sides of the neck. The lesions were not edematous or infiltrated, but there were pigmented remains of circinate lesions on the buttocks and thighs that were active at the borders. The Veteran underwent another VA examination in November 1969, and the examiner noted his reports of experiencing blotches on his skin when he was "heated up." The examiner then noted that there was no evidence of a skin disease upon examination, and that the Veteran's tinea corporis and ecthyma of fingers was by history only. A May 1970 letter from the Veteran's treatment provider noted that he developed jungle rot while in Vietnam. The treatment provider then noted that examination revealed moderate hyperhidrosis of the hands and feet with mild exfoliation of the skin on the palmar surface of the hands. The treatment provider also noted the presence of acneiform eruption in the intrascapular area, as well as folliculitis of the buttocks. Finally, the treatment provider noted the presence of a nevus anemicus over the left upper arm in the deltoid area. The Veteran underwent another VA examination in July 1970, and the examiner noted his report that his skin was in good shape now. The examiner noted that the Veteran's hands and feet showed minimal dampness. However, there was no evidence of jungle rot, exfoliation of the hands, ecthyma, or tinea corporis. Still, the examiner noted the presence of a few irregular acne lesions of the central back and buttocks showing remains of old inflammation. An April 1977 VA examination report noted that examination of the skin revealed no signs of tinea corporis or any dermatitis on the trunk, extremities, or face. An August 1997 private treatment record noted that the Veteran still had problems with a bilateral hand rash with peeling and itching. A January 1998 private treatment record noted the Veteran's report of a rash on his hands that was nodular and erythematous. In a March 1998 statement, the Veteran reported that, following his discharge from active duty, he experienced persistent skin problems, including rashes and red blotches throughout his body. A June 1999 private treatment record noted the Veteran's history of jungle rot following his service in the Republic of Vietnam. The Veteran indicated that it took four years to treat the jungle rot, and he stated that he still experienced multiple red spots that erupted on his extremities that had a white base. He also reported a blotchy character to his skin on his whole body (limbs as well as trunk and torso). An August 1999 private treatment record notes the Veteran's concern about some areas of erythema of the skin, particularly of the legs. A February 2000 private treatment record noted the Veteran's history of a recurrent pruritic rash that would last for three or four days at a time. An October 2010 VA treatment record notes the Veteran's reported history of getting a rash "off and on." As noted above, the 30 percent disability rating was assigned under Diagnostic Code 7899-7806 due to the November 1967 VA treatment record showing some scaly plaques and pustules, along with nummular lesions on the feet, legs, thighs, arms, and chest; as well as the November 1967 VA examination report showing mildly scaling erythematous plaques and medallions on the cheeks and sides of the neck, along with pigmented remains of circinate lesions on the buttocks and thighs that were active at the borders. Although the November 1969 VA examiner indicated that there was no evidence of a skin disease upon examination, the Veteran still reported experiencing blotches on his skin when he was "heated up." The May 1970 letter from the Veteran's treatment provider indicated that many of the areas identified by the November 1967 VA examination report were still showing signs of skins problems, including moderate hyperhidrosis of the hands and feet, mild exfoliation of the skin on the palmar surface of the hands, acneiform eruption in the intrascapular area, folliculitis of the buttocks, and a nevus anemicus over the left upper arm in the deltoid area. Although the July 1970 VA examiner indicated that there was no evidence of jungle rot, exfoliation of the hands, ecthyma, or tinea corporis, the examiner still noted the presence of a few irregular acne lesions of the central back and buttocks showing remains of old inflammation. Given the May 1970 letter from the Veteran's private treatment provider, as well as his subsequent treatment records demonstrating ongoing complaints of, and treatment for, skin problems in the 1990s and beyond, as well as the Veteran's consistent reports that his skin condition was recurrent (rather than constant) since his time in Vietnam, it is clear that the November 1969 and July 1970 VA examination results did not demonstrate an improvement maintained under the ordinary conditions of life, but rather a disease subject to temporary or episodic improvement. See 38 C.F.R. § 3.344. Therefore, because the evidence of record did not demonstrate sustained improvement or improvement under the ordinary conditions of life, the Board concludes that the Veteran's 30 percent disability rating for his service-connected tinea corporis with ecthyma of fingers and intradermal to face must be restored, effective June 1, 1970. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.